Flexible working requests are not new in the workplace. They have, however, been thrown into the limelight following the impact of the coronavirus pandemic.
For both employers and employees alike, the switch to homeworking as a business continuity measure during the pandemic has revealed that in certain cases, working from home and other flexible alternatives can, with effective planning, be beneficial.
While employers and employees are free to engage in informal discussions about flexible working irrespective of length of service and employment status, both parties should be aware of the statutory framework governing the regime and the ensuing rights and responsibilities which flow from it.
Some practical points: the application process
When it comes to the application itself, there are some practical points for employers to bear in mind.
Having written policies and procedures in place is a good idea
Implementing these measures will ensure that requests are considered promptly and consistently. Well drafted policies will also provide certainty to employees. This means that they will likely be aware of the circumstances within which requests may be refused and so reduce the risk of tribunal complaints where applications are rejected in line with the policy. Furthermore, having a policy in place can be a helpful management tool provided managers are effectively trained on its application.
Be open to exploring alternative approaches
If the proposed working pattern in the application cannot be accommodated, employers should consider alternative ways to meet the employee's objectives. It may be possible to agree to a time-limited change or consider whether the employee’s short term needs can be met by taking annual leave. Trial periods can also be beneficial to both parties.
Consistency is key
Employers should ensure that decisions in relation to flexible working requests are consistent and can be objectively justified. It is also important to bear equality laws in mind and to make sure that decisionmaking is not discriminatory against any employee because of a protected characteristic such as on the basis of sex, age or disability.
It can often work well to appoint a particular manager (such as HR) to oversee the decision making process and act as a quality control in ensuring that decisions are made fairly and that the basis of rejection of any request is also consistent with previous decisions.
The statutory framework recognises that companies may have legitimate business reasons for refusing requests and provides eight grounds upon which requests may be rejected. Of course, the fact that an application for an employee in a similar set of circumstances was approved does not mean that all requests from employees in a similar position should be approved. For example, it may be that external circumstances (customer demand, technology, overall staffing levels, etc) have changed, which may influence an employer’s decision when considering any subsequent requests.
A flexible future?
Even after restrictions have been lifted, it is expected that many employees will be making requests with a view to being able to continue working flexibly in some form. In doing so, they may point to the success of the extensive ‘trial period’ imposed by lockdown as evidence as to why such requests should be granted – particularly if they can demonstrate that this has had an increased effect on performance and/or productivity.
The rigid five-day office week has become, for many, something of a blast from the pre-pandemic past. Just how fleeting this sentiment is remains uncertain at present, and so the question stands: is the future of work truly flexible?
Helen Frankland is an associate solicitor in the HR/Employment Law team at Slater Heelis